Brian Tobin: Proposed laws discourage surrogacy arrangements here

Parents could be left frustrated if surrogates refuse to consent to legal transfer of parentage, writes Brian Tobin

Wed, 16 Mar, 2022 - 03:00

Brian Tobin

The Health (Assisted Human Reproduction) Bill 2022 was recently approved by the Cabinet, and made available to the public on March 10. Part 7 provides for the regulation of non-commercial surrogacy arrangements carried out in Ireland. However, the proposals contained in Part 7 are so complex, restrictive and risk-laden that one might be forgiven for thinking that those who drafted the bill are in fact trying to discourage domestic surrogacy arrangements.

The bill provides for the setting up of an Assisted Human Reproduction Regulatory Authority (AHRRA) that must, among its many functions, approve the parties’ surrogacy agreement before any treatment in a fertility clinic will be permitted.

However, the surrogacy agreement will be a costly venture for the intended parents (the couple that initiates the surrogacy arrangement) even before its submission to the AHRRA for approval, because among the pre-natal “reasonable expenses” that they must pay for on behalf of the surrogate are medical expenses, counselling, and the provision of independent legal advice regarding the implications of the agreement.

These initial costs might not deter intended parents from engaging in surrogacy in Ireland but, following these steps, the AHRRA’s approval of their surrogacy agreement will really be limited to the approval of treatment, not the legal parentage of the surrogate-born child. Despite all parties having received counselling and independent legal advice, and freely consented to the terms of the surrogacy agreement, legal parentage of the child born as a result of the surrogacy will not be determined at this point.

Surely the fully informed parties should be able to freely consent to a clause in the agreement which stipulates that upon the birth of the child, legal parentage rests with the intended parents by operation of law?

This would not conflict with the surrogate’s right to manage her pregnancy in the same way as any other woman because legal parentage would only arise by operation of law at birth. Nonetheless, the bill does not allow for this approach — intended parents must soldier on in the hope that the surrogate will be willing to consent to the transfer of legal parentage to them by a court after she gives birth to the child.

The bill only proposes to regulate gestational surrogacy in Ireland, although it is only clear from one single provision in Part 7, section 62 (3) (a) (ii), that gestational surrogacy, and not traditional surrogacy, is being regulated. Gestational surrogacy is where the surrogate does not use her own genetic material (ova) but instead carries an embryo and gives birth to a child formed from the genetic material of others. In a traditional surrogacy arrangement, the surrogate uses her own ova and is thus genetically related to the surrogate-born child. Since only gestational surrogacy is being regulated, it is unclear as to why the bill does not propose to settle the issue of parentage in favour of the intended parents at the stage where the AHRRA initially approves the agreement, especially when one considers that Part 7 requires “not less than one” of the intended parents to provide gametes (sperm/ova) and be genetically related to the surrogate-born child. Thus, in all domestic,
gestational surrogacies, unlike the surrogate, at least one intended parent will be genetically related to the child. Indeed, in many surrogacy arrangements involving opposite-sex intended parents, both will provide the genetic material that forms the embryo(s).

The surrogate will be the child’s legal mother. Nonetheless, at birth, the bill provides that the gestational surrogate will be the legal mother. The intended parents can only apply to the court seeking a parental order that will transfer legal parentage from the surrogate to them a minimum of 28 days after the birth of the child. The surrogate must consent to this transfer of parental rights or she will remain the child’s legal mother, and there appears to be nothing that the intending parents can do about this. Part 7 makes it clear that the surrogate’s consent can only be dispensed with by the court if she is either deceased or cannot be located.

This requirement around consent is extremely strict when compared to the original draft of the bill that was published as far back as 2017.

In the original draft, it was provided that the court could waive the requirement for the surrogate’s consent to a parental order “for any other reason the court considers to be relevant” which, if it had been retained in the current bill, would at least have offered a potential life-line to intending parents who might find themselves in this predicament. Indeed, one wonders whether this provision was intentionally removed from the bill to make domestic surrogacy as perilous an undertaking as possible for Irish intended parents.

In 2014, in the “surrogacy case” of MR v an tArd Chláratheoir, the Supreme Court made it clear that any future legislation concerning surrogacy would be “of doubtful constitutional validity” if it precluded surrogate-born children from being part of a constitutional family. Of course, the only “family” recognised by the Constitution is the married family in Article 41. So, allowing a gestational surrogate to arbitrarily withhold consent to a parental order being made by a court in favour of married parents (whether same-sex or opposite-sex) without any possibility for the court to dispense with her consent — except in the two extreme circumstances noted above — might prove to be a constitutionally infirm aspect of the bill if challenged in court by married intended parents.

Further, given that children’s rights are expressly protected in Article 42A of the Constitution, a child-centred reason for waiving the surrogate’s consent should be provided in the bill. In the context of adoption, Section 31 of the Adoption Act 2010, as amended, allows the High Court to dispense with the need for the natural mother’s consent where she fails, neglects or refuses to give her consent to the making of an adoption order.

However, before doing so the High Court must have regard to “the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child)” in Article 42A. One such “natural and imprescriptible” constitutional right of the surrogate-born child might surely be a right to the enjoyment of family life with its intended parents, who are the ones responsible for its birth by initiating the surrogacy arrangement in the first place? If legislation can allow a natural mother’s consent to an adoption to be dispensed with in the manner above, surely it should similarly allow a gestational surrogate’s consent to possibly be dispensed with on the same grounds?

Part 7 creates a complex, hybrid pre-birth State approval and post-birth parental order model for surrogacy arrangements which, if enacted in its current form, could prove frustrating and stressful for intended parents if the surrogate’s consent to a legal transfer of parentage is not forthcoming after the child’s birth.

While evidence indicates that the vast majority of surrogates do not view themselves as the mother of the child they have gestated for the intended parents, this is likely to be of little comfort to intended parents when deciding whether or not to embark on a pathway to parenting that involves substantial emotional investment, some financial investment, various pre and post-birth legal processes, and a certain degree of risk regarding the ultimate legal parentage of a surrogate-born child that will be genetically related to one or both of them.

The State’s restrictive approach to domestic surrogacy is unlikely to encourage many intended parents to avail of surrogacy in Ireland. Many will most likely continue to go to commercial surrogacy jurisdictions where their legal parentage can be recognised at birth.